Existing law requires each board, department, and office within the California Environmental Protection Agency that has enforcement authority to establish a policy on supplemental environmental projects that benefits disadvantaged communities and that includes, communities, as defined. Existing law requires that policy to include among other things, allowing the amount of a supplemental environmental project to be up to 50% of the enforcement action.

This bill would require the policy to also include a requirement an assurance that no less than 10% of an the enforcement action monetary penalty be deposited in the Supplemental Environmental Projects in the Disadvantaged Communities Fund, which would be created by the bill. The bill would require the moneys in the fund, upon appropriation, to be used to implement environmental projects in disadvantaged communities, as specified. penalties received by each board, department, and office within the agency is allocated to supplemental environmental projects in disadvantaged communities. The bill would require each board, department, and office within the agency to compile and submit specified information to the agency and would require the agency to consolidate that information and post it on the agencys Internet Web site.

Existing law requires each board, department, and office within the California Environmental Protection Agency that has enforcement authority to establish a policy on supplemental environmental projects that benefits disadvantaged communities and that includes, among other things, allowing the amount of a supplemental environmental project to be up to 50% of the enforcement action.

This bill would require the policy to also include a requirement that an additional 10% of an enforcement action to monetary penalty be deposited in the Supplemental Environmental Projects and in the Disadvantaged Communities Fund. Fund, which would be created by the bill. The bill would require the moneys in the fund, upon appropriation, to be used to implement environmental projects in disadvantaged communities, as specified.

Existing law requires each board, department, and office within the California Environmental Protection Agency that has enforcement authority to establish a policy on supplemental environmental projects that benefits disadvantaged communities that includes, among other things, allowing the amount of a supplemental environmental project to be up to 50% of the enforcement action.

This bill would require the policy to also include a requirement that an additional 10% of an enforcement action to be deposited in the Supplemental Environmental Projects and Disadvantaged Communities Fund. The bill would require the moneys in the fund, upon appropriation, to be used to implement environmental projects in disadvantaged communities, as specified.

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

AB 2781 (Eduardo Garcia) - Supplemental environmental projects

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 2781 requires each board, department, or office (BDO) within the California Environmental Protection Agency (CalEPA) with enforcement authority to ensure that at least 10 percent of enforcement penalties are spent on supplemental environmental projects allocated to disadvantaged communities.

Fiscal Impact:

• Redirection of at least 10 percent of penalty revenues from various special funds administered by BDOs within the CalEPA.
• Unknown, likely minor, costs (various special funds), for each BDO to track, report, and oversee SEPs.

Background:

Under existing law, penalties for violations of environmental laws can be partially offset by a commitment to undertake a SEP. Under CalEPA’s recommended guidance on SEPs, released in 2003, SEPs must improve, protect, or reduce risks to public health or the environment at large. The enforcing agency is required to help shape the scope of the project prior to approval, though the project must remain a voluntary action that the defendant is not legally required to perform. There must also be a relationship between the violation and the SEP. For example, the SEP may remediate or reduce the environmental or public health impacts of the violations. Various CalEPA BDOs have adopted their own SEP policies since the release of the CalEPA guidelines.

Proposed Law:

This bill:

1. Requires each BDO within the CalEPA with enforcement authority to ensure that at least 10 percent of enforcement penalties are allocated to disadvantaged communities.
2. Requires each BDO to submit to the CalEPA a list of potential projects that may be undertaken to satisfy the requirement above requirement.
3. Requires the CalEPA to compile the lists provided by the BDOs into one list and post it on its website.

Related Legislation:

AB 1071 (Atkins, Chapter 585, Statutes of 2015) required each board, department, and office within the CalEPA to establish a policy on supplemental environmental projects that benefits environmental justice communities.

Staff Comments:

By requiring that at least 10 percent of penalty revenue is spent on SEPs in disadvantaged communities, this bill will result in decreased penalty revenues to various special funds in the millions of dollars.

State Water Resources Control Board (SWRCB). The SWRCB collected between $10 million and $12 million per year for fiscal years 2012 through 2014. For that board, this bill would result in at least a $1 million redirection of funds.

Impact on Air Pollution Control Fund. Currently, penalty monies from air pollution violations are deposited in the Air Pollution Control Fund and appropriated for programs that mitigate air pollution‑related impacts.  In 2014, the amount of penalties totaled over $17 million. This bill would result in a loss of about $1.7 million in revenue. Currently, there is pressure on the Air Pollution Control Fund. As such, this redirection could result in reduced spending on air quality measures.

-- END --

SENATE COMMITTEE ON ENVIRONMENTAL QUALITY

Senator Wieckowski, Chair

2015 - 2016 Regular

Bill No: AB 2781

SUBJECT: Supplemental environmental projects.

ANALYSIS:

Existing law:

1. Defines “environmental justice” as “the fair treatment of people of all races, cultures, and incomes with respect to the development, adoption, implementation, and enforcement of all environmental laws, regulations, and policies.”
2. Requires the Secretary for Environmental Protection to convene a Working Group on Environmental Justice to assist the Agency in developing an agencywide strategy for identifying gaps in existing programs, policy or activities that may impede achievement of environmental justice, as specified.
3. Requires each board, department, and office within the California Environmental Protection Agency (CalEPA), in coordination with the Secretary and the Director of the Office of Planning and Research (OPR), to review programs, policies, and activities and identify and address any gaps that may impede the achievement of environmental justice.
4. Requires the CalEPA to identify “disadvantaged communities” based on geographic, socioeconomic, public health, and environmental hazard criteria.
5. Under compliance with the provisions of the Federal Water Pollution Control Act as Amended in 1972:
   1. Defines a “supplemental environmental project” (SEP) as “an environmentally beneficial project that a person agrees to undertake, with the approval of the regional water board, that would not be undertaken in the absence of an enforcement action.”
   2. Allows the state or regional water board to direct a portion of the penalty amount of a penalty to be expended on an SEP in accordance with the enforcement policy of the state board.
6. Allows a Regional Water Quality Control Board (regional board) to allow a violator, pursuant to the Storm Water Enforcement Act of 1998, to reduce penalties by up to 50% by undertaking an SEP in accordance with the enforcement policy of the State Water Resources Control Board (SWRCB) and any applicable guidance document.
7. Beginning January 1, 2016, requires each board, department, and office within CalEPA to establish a policy on SEPs that benefits environmental justice communities. Authorizes up to 50% of an enforcement action to be allocated for SEPs. Requires CalEPA to compile a list of SEPs developed by its boards, departments, and offices and post the list on its Internet website.

This bill: directs 10% of all penalties collected by California Environmental Protection Agency (CalEPA) boards, departments, and offices to fund SEPs in disadvantaged communities. Specifically, this bill:

1. Requires that 10% of all enforcement action monetary penalties collected by a CalEPA board, department, or office to be deposited into the Supplemental Environmental Projects in Disadvantaged Communities Fund (Fund).
2. Specifies that the Fund be available, upon appropriation, to implement environmental projects in disadvantaged communities. Prioritizes funding for projects on the list compiled by CalEPA.

Background

1. Environmental Justice. According to OEHHA, approximately 8 million Californians (21%) live in zip codes that are considered “highly impacted” by environmental, public health, and socioeconomic stressors. Nearly half of all Californians live within six miles of a facility that is a significant greenhouse gas emitter (46%), and they are disproportionately people of color (62%). Throughout California, people of color face a 50% higher risk of cancer from ambient concentrations of air pollutants listed under the Clean Air Act. These impacts are felt by all Californians. The California Air Resources Board (ARB) estimates that air pollution exposure accounts for 19,000 premature deaths, 280,000 cases of asthma, and 1.9 million lost work days every year.

In February of 2014, CalEPA issued an Environmental Justice Program Update, which included four main areas for future actions: 1) increase efforts to eliminate discrimination on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, genetic information, or disability in any program or activity conducted or funded by the state; 2) develop guidance to promote a sound legal framework for CalEPA to advance environmental justice goals and objectives; 3) lead an agency-wide working group dedicated to increase compliance with environmental laws in communities with relatively higher environmental burdens; and, 4) add additional indicators to CalEnviroScreen.

1. SEPs. SEPs are environmentally beneficial projects that a violator agrees to undertake as part of a settlement for an enforcement action, but which the violator is not otherwise legally required to perform. In 2003, CalEPA released guidelines for the use of SEPs for its boards, departments, and offices. The guidelines specify that an SEP must improve, protect, or reduce risks to public health and the environment at large. The enforcing agency must have the opportunity to help shape the scope of the project before it is implemented and the project must not be commenced until the enforcing agency has identified a violation. Finally, the SEP must not be required by a federal, state, or local law or regulation. CalEPA’s SEP guidelines suggest limiting the SEP to 25% of the total enforcement action.

Within CalEPA, ARB, the Department of Toxic Substances Control (DTSC), and SWRCB have adopted SEP policies. ARB and DTSC's policies are consistent with CalEPA's guidelines and allow SEPs up to 25% of the amount of the enforcement action. SWRCB, consistent with authority granted by SB 1733 (Aanestad), Chapter 404, Statutes of 2006, allow SEPs up to 50% of the amount of the penalty. CalEPA's 2013 Environmental Compliance and Enforcement Report provides information on the use of SEPs in California. The certified unified program agencies directed just over $2.1 million to SEPs, approximately 25% of the penalties collected. According to ARB, of the $9.97 million penalties assessed for significant enforcement cases (over $10,000), $773,600 was directed to SEPs. The California Department of Pesticide Regulation directed only $8,000 of the $3.3 million in penalties collected to one SEP. The other boards, departments, and offices did not report any SEP funding in 2013.

Comments

1. Purpose of Bill. According to the author, “many communities in California continue to be disproportionately burdened [by] multiple sources of pollution. These communities are most vulnerable to pollution and climate change than others. These disadvantaged communities… require much more than resources to tackle climate and environmental health impacts and to implement community led projects. Currently many communities facing enforcement actions would rather pay the fine than inclement a SEP. This is mainly attributed to the time and effort necessary to implement a SEP. The inexperience of the violator also contributes to the lack of SEP implementation. As a result, there continues to be a disconnect that prevents disadvantaged communities from benefitting from pollution mitigation projects funded by enforcement actions. Without requiring a mandatory Disadvantaged Community Fund, disadvantaged communities will continue to be overlooked and not benefit from much needed environmental mitigation. By securing resources that benefit disadvantaged communities, the state can help decrease many of the environmental stressors affecting these communities.”
   
2. According to the Assembly Appropriations Committee, this bill redirects revenue from monetary penalties to the newly created Fund, likely in the $3 to $5 million dollar range (special fund). Additionally, CalEPA would require an additional $175,000 for administrative costs.

There would likely be additional administrative costs to each of the boards, departments and offices to account for and submit the 10% of their penalties.

While it appears that there is benefit in requiring and investing in SEPS, would it not be more prudent to require each of the boards, departments and offices to expend 10% of their penalties implementing SEPs directly, rather than creating additional cost to collect, account and administer a singular fund at the agency level?

Additionally, SEP investments are often made as part of the penalty settlement agreement and the SEP is ideally for the community in which the environmental damage by the violation was done. This bill would fundamentally change that by having the penalties put into a separate fund to determine which SEPs to invest in. It is most appropriate for the SEP dollars to be spent in the communities where the damage is done and ideally to improve the environment in such a way as to mitigate and reverse the damage done by the violation. The regulatory agencies that are enforcing the law, and thereby collecting the penalties, are more appropriate to determining how best to do that.

An amendment is needed to require each board, department or office within CalEPA to expend 10 percent of its penalties on SEPS rather than create a new fund at CalEPA.

Related/Prior Legislation

AB 1071 (Atkins, Chapter 585, Statutes of 2015) requires each board, department, and office within CalEPA to establish a policy on SEPs that benefits environmental justice communities.

SB 89 (Escutia, Chapter 728, Statutes of 2000) requires CalEPA to convene the Environmental Justice Working Group and develop an agency-wide environmental justice strategy.

SB 828 (Alarcon, Chapter 765, Statutes of 2001) established a timeline for these requirements and required CalEPA to update its report to the Legislature every three years. In October of 2004, CalEPA released its Environmental Justice Action Plan, but did not complete the required updates for a decade.

SB 535 (de León, Chapter 830, Statutes of 2012) requires the Cap and Trade Proceeds Investment Plan to direct a minimum of 25% of the available moneys in the fund to projects that provide benefits to identified disadvantaged communities; and, a minimum of 10% of the available moneys in the fund to projects located within identified disadvantaged communities. SB 535 also required CalEPA to identify disadvantaged communities (i.e., environmental justice communities).

SOURCE:

Comité Civico de Valle

SUPPORT:

California Indian environmental Alliance

Global Community Monitor

Idle No More SF Bay

La Union Hace La Fuerza

West Berkeley Alliance for Clean Air and Safe Jobs

OPPOSITION:

None received

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 2781

Author:(Eduardo Garcia)

As Amended Ver:April 7, 2016

Majority vote

SUMMARY: Directs 10% of all penalties collected by California Environmental Protection Agency (CalEPA) boards, departments, and offices to fund supplemental environmental projects (SEPs) in disadvantaged communities. Specifically, this bill:

1. Requires that 10% of all enforcement action monetary penalties collected by a CalEPA board, department, or office to be deposited into the Supplemental Environmental Projects in Disadvantaged Communities Fund (Fund).
2. Specifies that the Fund be available, upon appropriation, to implement environmental projects in disadvantaged communities. Prioritizes funding for projects on the list compiled by CalEPA.

EXISTING LAW:

1. Requires CalEPA to:
   1. Conduct its programs, policies, and activities and enforce all health and environmental statutes within its jurisdiction in a manner that ensures the fair treatment of people of all races, cultures, and income levels, including minority and low-income populations.
   2. Convene a Working Group on Environmental Justice (Working Group) comprised of the Secretary of CalEPA, the Chairs of the Air Resources Board (ARB), the California Integrated Waste Management Board (now CalRecycle), the State Water Resources Control Board (SWRCB), the Director of the Department of Toxic Substances Control (DTSC), the Director of the Department of Pesticide Regulation (DPR), the Director of the Office of Environmental Health Hazard Assessment (OEHHA), and the Director of the Office of Planning and Research (OPR). Requires the Working Group to examine existing data and studies on environmental justice and recommending policies for implementation by CalEPA; recommend criteria to the Secretary of CalEPA for identifying and addressing any gaps in existing programs, policies, or activities that may impede the achievement of environmental justice; and, hold public meetings to receive and respond to public comments prior to the finalization of the recommendations.
   3. Requires each board, department, and office within CalEPA to review its programs, policies, and activities and identify and address any gaps in its existing programs, policies, or activities that may impede the achievement of environmental justice.
2. Beginning January 1, 2016, requires each board, department, and office within CalEPA to establish a policy on SEPs that benefits environmental justice communities. Authorizes up to 50% of an enforcement action to be allocated for SEPs. Requires CalEPA to compile a list of SEPs developed by its boards, departments, and offices and post the list on its website.

FISCAL EFFECT: According to the Assembly Appropriations Committee, this bill redirects revenue from monetary penalties to the newly created Fund, likely in the $3 to $5 million dollar range (special fund). Additionally, CalEPA would require an additional $175,000 for administrative costs.

COMMENTS: According to OEHHA, approximately 8 million Californians (21%) live in zip codes that are considered "highly impacted" by environmental, public health, and socioeconomic stressors. Nearly half of all Californians live within six miles of a facility that is a significant greenhouse gas emitter (46%), and they are disproportionately people of color (62%). Throughout California, people of color face a 50% higher risk of cancer from ambient concentrations of air pollutants listed under the Clean Air Act. These impacts are felt by all Californians. ARB estimates that air pollution exposure accounts for 19,000 premature deaths, 280,000 cases of asthma, and 1.9 million lost work days every year.

In 2000, legislation [SB 89 (Escutia), Chapter 728, Statutes of 2000] required CalEPA to convene the Environmental Justice Working Group and develop an agency-wide environmental justice strategy. In 2001, follow up legislation [SB 828 (Alarcon), Chapter 765, Statutes of 2001] established a timeline for these requirements and required CalEPA to update its report to the Legislature every three years. In October of 2004, CalEPA released its Environmental Justice Action Plan, but did not complete the required updates for a decade.

SB 535 (DeLeon), Chapter 830, Statutes of 2012 requires the Cap and Trade Proceeds Investment Plan to direct a minimum of 25% of the available moneys in the fund to projects that provide benefits to identified disadvantaged communities; and, a minimum of 10% of the available moneys in the fund to projects located within identified disadvantaged communities. SB 535 also required CalEPA to identify disadvantaged communities (i.e., environmental justice communities). In order to accurately identify environmental justice communities, OEHHA, on behalf of CalEPA, created the California Communities Environmental Health Screening Tool (CalEnviroScreen). CalEnviroScreen is a screening methodology that can be used to help identify California communities that are disproportionately burdened by multiple sources of pollution.

In February of 2014, CalEPA issued an Environmental Justice Program Update, which included four main areas for future actions: 1) increase efforts to eliminate discrimination on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, genetic information, or disability in any program or activity conducted or funded by the state; 2) develop guidance to promote a sound legal framework for CalEPA to advance environmental justice goals and objectives; 3) lead an agency-wide working group dedicated to increase compliance with environmental laws in communities with relatively higher environmental burdens; and, 4) add additional indicators to CalEnviroScreen.

SEPs are environmentally beneficial projects that a violator agrees to undertake as part of a settlement for an enforcement action, but which the violator is not otherwise legally required to perform. In 2003, CalEPA released guidelines for the use of SEPs for its boards, departments, and offices. The guidelines specify that an SEP must improve, protect, or reduce risks to public health and the environment at large. The enforcing agency must have the opportunity to help shape the scope of the project before it is implemented and the project must not be commenced until the enforcing agency has identified a violation. Finally, the SEP must not be required by a federal, state, or local law or regulation. CalEPA's SEP guidelines suggest limiting the SEP to 25% of the total enforcement action.

Within CalEPA, ARB, DTSC, and SWRCB have adopted SEP policies. ARB and DTSC's policies are consistent with CalEPA's guidelines and allow SEPs up to 25% of the amount of the enforcement action. SWRCB, consistent with authority granted by SB 1733 (Aanestad), Chapter 404, Statutes of 2006, allow SEPs up to 50% of the amount of the penalty. CalEPA's 2013 Environmental Compliance and Enforcement Report provides information on the use of SEPs in California. The certified unified program agencies directed just over $2.1 million to SEPs, approximately 25% of the penalties collected. According to ARB, of the $9.97 million penalties assessed for significant enforcement cases (over $10,000), $773,600 was directed to SEPs. DPR directed only $8,000 of the $3.3 million in penalties collected to one SEP. The other boards, departments, and offices did not report any SEP funding in 2013.

Analysis Prepared by: Elizabeth MacMillan / NAT. RES. / (916) 319-2092 FN: 0003194

Date of Hearing: May 4, 2016

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 2781

Author:(Eduardo Garcia) – As Amended Ver:April 7, 2016

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill directs 10% of all penalties collected by California Environmental Protection Agency (CalEPA) boards, departments, and offices to fund environmental projects in disadvantaged communities. Specifically, this bill:

1. Requires 10% of all enforcement action monetary penalties collected by a CalEPA board, department, or office to be deposited into the Supplemental Environmental Projects in Disadvantaged Communities Fund (Fund).
2. Specifies the Fund is available, upon appropriation, to implement environmental projects in disadvantaged communities. Prioritizes funding for projects on the list compiled by CalEPA.

FISCAL EFFECT:

This bill redirects revenue from monetary penalties to the newly created fund, likely in the $3 to $5 million dollar range (special fund). Additionally, CalEPA would require an additional $175,000 for administrative costs.

COMMENTS:

1. Purpose. According to the author, without requiring a mandatory fund, disadvantaged communities will continue to be overlooked and will not benefit from much needed environmental mitigation. By securing resources that benefit disadvantaged communities, the state can help decrease many of the environmental stressors affecting these communities.
   
2. Background. AB 1071 (Atkins), Chapter 585, Statutes of 2015, requires each board, department, and office within CalEPA to establish a policy on supplemental environmental projects (SEPs) to benefit environmental justice communities. SEPs are environmentally beneficial projects that a violator agrees to undertake as part of a settlement for an enforcement action, but which the violator is not otherwise legally required to perform.

In 2003, CalEPA released guidelines for the use of SEPs for its boards, departments, and offices. The guidelines specify that an SEP must improve, protect, or reduce risks to public health and the environment at large. The enforcing agency must have the opportunity to help shape the scope of the project before it is implemented and the project must not be commenced until the enforcing agency has identified a violation. Finally, the SEP must not be required by a federal, state, or local law or regulation. CalEPA's SEP guidelines suggest limiting the SEP to 25% of the total enforcement action, but up to 50% of an enforcement action may be allocated for SEPs.

AB 1071 also requires CalEPA to compile a list of SEPs and post the list on its website. CalEPA is in the process of implementing AB 1071. According to CalEPA, the draft SEP policy will be available for public review this month; boards, departments, and offices will begin soliciting SEP proposals from the public in late summer, and CalEPA will post the compiled SEP list to the website by December.

Analysis Prepared by: Jennifer Galehouse / APPR. / (916) 319-2081

Date of Hearing: April 18, 2016

ASSEMBLY COMMITTEE ON NATURAL RESOURCES

Das Williams, Chair

ABPCA Bill Id:AB 2781 (

Author:Eduardo Garcia) – As Amended Ver:April 7, 2016

SUBJECT: Supplemental environmental projects

SUMMARY: Directs 10% of all penalties collected by California Environmental Protection Agency (CalEPA) boards, departments, and offices to fund environmental projects in disadvantaged communities.

EXISTING LAW:

1. Defines “environmental justice” to mean the fair treatment of people of all races, cultures, and incomes with respect to the development, adoption, implementation, and enforcement of environmental laws, regulations, and policies.
   
2. Defines "environmental justice community" as a community identified by CalEPA based on geographic, socioeconomic, public health, and environmental hazard criteria, including:
   
   1. Areas disproportionately affected by environmental pollution and other hazards that can lead to negative public health effects, exposure, or environmental degradation; and,
      
   2. Areas with concentrations of people that are of low income, high unemployment, low levels of homeownership, high rent burden, sensitive populations, or low levels of educational attainment.
      
3. Requires CalEPA to:
   1. Conduct its programs, policies, and activities and enforce all health and environmental statutes within its jurisdiction in a manner that ensures the fair treatment of people of all races, cultures, and income levels, including minority and low-income populations.
   2. Convene a Working Group on Environmental Justice (Working Group) comprised of the Secretary of CalEPA, the Chairs of the Air Resources Board (ARB), the California Integrated Waste Management Board (now CalRecycle), the State Water Resources Control Board (SWRCB), the Director of the Department of Toxic Substances Control (DTSC), the Director of the Department of Pesticide Regulation (DPR), the Director of the Office of Environmental Health Hazard Assessment (OEHHA), and the Director of the Office of Planning and Research (OPR). Requires the Working Group to examine existing data and studies on environmental justice and recommending policies for implementation by CalEPA; recommend criteria to the Secretary of CalEPA for identifying and addressing any gaps in existing programs, policies, or activities that may impede the achievement of environmental justice; and, hold public meetings to receive and respond to public comments prior to the finalization of the recommendations.
   3. Requires each board, department, and office within CalEPA to review its programs, policies, and activities and identify and address any gaps in its existing programs, policies, or activities that may impede the achievement of environmental justice.
4. Names OPR as the coordinating agency in state government for environmental justice programs.
   
5. Pursuant to AB 1071 (Atkins), Chapter 585, Statutes of 2015, beginning January 1, 2016, requires each board, department, and office within CalEPA to establish a policy on supplemental environmental projects (SEPs) that benefits environmental justice communities. Authorizes up to 50% of an enforcement action to be allocated for SEPs. Requires CalEPA to compile a list of SEPs developed by its boards, departments, and offices and post the list on its website.
   

THIS BILL:

1. Requires that 10% of all enforcement action monetary penalties collected by a CalEPA board, department, or office to be deposited into the Supplemental Environmental Projects in Disadvantaged Communities Fund (Fund).
2. Specifies that the Fund be available, upon appropriation, to implement environmental projects in disadvantaged communities. Prioritizes funding for projects on the list compiled by CalEPA.

FISCAL EFFECT: Unknown

COMMENTS:

1. Environmental justice. According to OEHHA, approximately 8 million Californians (21%) live in zip codes that are considered "highly impacted" by environmental, public health, and socioeconomic stressors. Nearly half of all Californians live within six miles of a facility that is a significant greenhouse gas emitter (46%), and they are disproportionately people of color (62%). Throughout California, people of color face a 50% higher risk of cancer from ambient concentrations of air pollutants listed under the Clean Air Act. These impacts are felt by all Californians. ARB estimates that air pollution exposure accounts for 19,000 premature deaths, 280,000 cases of asthma, and 1.9 million lost work days every year.

In 2000, legislation [SB 89 (Escutia), Chapter 728] required CalEPA to convene the

Environmental Justice Working Group and develop an agency-wide environmental justice

strategy. In 2001, follow up legislation [SB 828 (Alarcon), Chapter 765] established a

timeline for these requirements and required CalEPA to update its report to the Legislature

every three years. In October of 2004, CalEPA released its Environmental Justice Action Plan, but did not complete the required updates for a decade.

SB 535 (DeLeon), Chapter 850, Statutes of 2012 requires the Cap and Trade Proceeds Investment Plan to direct a minimum of 25% of the available moneys in the fund to projects that provide benefits to identified disadvantaged communities; and, a minimum of 10% of the available moneys in the fund to projects located within identified disadvantaged communities. SB 535 also required CalEPA to identify disadvantaged communities (i.e., environmental justice communities). In order to accurately identify environmental justice communities, OEHHA, on behalf of CalEPA, created the California Communities Environmental Health Screening Tool (CalEnviroScreen). CalEnviroScreen is a screening methodology that can be used to help identify California communities that are disproportionately burdened by multiple sources of pollution.

In February of 2014, CalEPA issued an Environmental Justice Program Update, which included four main areas for future actions: 1) increase efforts to eliminate discrimination on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, genetic information, or disability in any program or activity conducted or funded by the state; 2) develop guidance to promote a sound legal framework for CalEPA to advance environmental justice goals and objectives; 3) lead an agency-wide working group dedicated to increase compliance with environmental laws in communities with relatively higher environmental burdens; and, 4) add additional indicators to CalEnviroScreen.

1. Supplemental environmental projects. SEPs are environmentally beneficial projects that a violator agrees to undertake as part of a settlement for an enforcement action, but which the violator is not otherwise legally required to perform. In 2003, CalEPA released guidelines for the use of SEPs for its boards, departments, and offices. The guidelines specify that an SEP must improve, protect, or reduce risks to public health and the environment at large. The enforcing agency must have the opportunity to help shape the scope of the project before it is implemented and the project must not be commenced until the enforcing agency has identified a violation. Finally, the SEP must not be required by a federal, state, or local law or regulation. CalEPA's SEP guidelines suggest limiting the SEP to 25% of the total enforcement action.

Within CalEPA, ARB, DTSC, and SWRCB have adopted SEP policies. ARB and DTSC's policies are consistent with CalEPA's guidelines and allow SEPs up to 25% of the amount of the enforcement action. SWRCB, consistent with authority granted by SB 1733 (Aanestad), Chapter 404, Statutes of 2006, allow SEPs up to 50% of the amount of the penalty. CalEPA's 2013 Environmental Compliance and Enforcement Report provides information on the use of SEPs in California. The certified unified program agencies directed just over $2.1 million to SEPs, approximately 25% of the penalties collected. According to ARB, of the $9.97 million penalties assessed for significant enforcement cases (over $10,000), $773,600 was directed to SEPs. DPR directed only $8,000 of the $3.3 million in penalties collected to one SEP. The other boards, departments, and offices did not report any SEP funding in 2013.

CalEPA is in the process of implementing AB 1071. According to CalEPA, the draft SEP policy will be available for public review this month; boards, departments, and offices will begin soliciting SEP proposals from the public in late summer, and CalEPA will post the compiled SEP list to the website by December.

1. Author's statement:

Many communities in California continue to be disproportionately burdened [by] multiple sources of pollution. These communities are most vulnerable to pollution and climate change than others. These disadvantaged communities… require much more than resources to tackle climate and environmental health impacts and to implement community led projects.

Currently, many communities facing enforcement actions would rather pay the fine than implement a SEP. This is mainly attributed to the time and effort necessary to implement a SEP. The inexperience of the violator also contributes to the lack of SEP implementation.

As a result, there continues to be a disconnect that prevents disadvantaged communities from benefitting from pollution mitigation projects funded by enforcement actions. Without requiring a mandatory Disadvantaged Community Fund, DACs will continue to be overlooked and not benefit from much needed environmental mitigation. By securing resources that benefit disadvantaged communities, the state can help decrease many of the environmental stressors affecting these communities.

REGISTERED SUPPORT / OPPOSITION:

Support

California Indian Environmental Alliance

Comite Civico Del Valle

Global Community Monitor
Idle No More SF Bay
La Union Hace La Fuerza

West Berkeley Alliance for Clean Air and Safe Jobs

Opposition

None on file

Analysis Prepared by: Elizabeth MacMillan / NAT. RES. / (916) 319-2092